In early March, the U.S. Court of Appeals for the Tenth Circuit, in Sierra Club v. Oklahoma Gas and Electric Company, in a 2-to-1 decision, affirmed the district court’s dismissal of Sierra Club’s Clean Air Act (CAA) citizens suit against OG&E, concluding that their civil penalty and equitable relief claims are time-barred because Sierra Club’s…
Properly interpreting CERCLA’s statute of limitations often presents vexing problems, and never more so than when claims for natural resource damages (NRD) are filed. As explained several years ago by the Ninth Circuit Court of Appeals in United States v. Asarco, Inc., ordinarily a claim for NRD must be filed within three years…
The courts have been busy issuing significant Endangered Species Act rulings. In the latest decision, the U.S. Court of Appeals for the District of Columbia Circuit, in Defenders of Wildlife and Center for Biological Diversity v. Jewell, issued a unanimous ruling which affirmed the lower court’s decision that the U.S. Fish and…
EPA has spent almost 40 years wrestling with the definition of “solid waste” for purposes of the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. (RCRA). The statutory definition of the term contemplates that it includes “any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control…
Planning and constructing new power plants that will employ new technologies, especially those substantially funded by the federal government, can be a challenging business. Whenever a new law, regulation or agency process goes into effect, industry and legal observers await the often inevitable legal challenges that will arise. For obvious…
Good news for those who respond to and engage in oil spill clean up efforts. In a ruling released on February 16, 2016, the U.S. District Court for the Eastern District of Louisiana, in In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico on April 20,…
The U.S. Court of Appeals for the Sixth Circuit, in In re: United States Department of Defense and United States Environmental Protection Agency Final Rule: Clean Water Rule: Definition of “Waters of the United States,” 80 Fed. Reg. 37,050 (June 29, 2015), in a split opinion, confirmed that it has jurisdiction…
On January 29, 2016, the Texas Supreme Court, in Railroad Commission of Texas v. Gulf Energy Exploration Corporation, unanimously reversed a decision of the Court of Appeals for the Thirteenth District (Corpus Christi) which had sustained the liability of the Texas Railroad Commission for the erroneous plugging of an abandoned…
The Freedom of Information Act (FOIA), first enacted more than 40 years ago, governs the release of information to the public of data generated by and submitted to the federal government. A recent decision by a U.S. District Court in Washington, DC, Competitive Enterprise Institute v. Office of Science and…
On February 8, 2016, two significant decisions regarding the Federal Tort Claims Act (FTCA) were issued by the federal courts in the wake of the Supreme Court’s guidance in U.S. v. Kwai Fun Wong,135 S. Ct. 1625, 1638 (2015), that “the FTCA’s time bars are nonjurisdictional and subject to equitable tolling.” These…